Equal Protection for Unmarried Fathers

We all recognize the stereotype of the unmarried father -- absent, uninterested, and uninvolved in his kids' lives. But the cliché that unmarried fathers never have meaningful relationships with their children -- just because they aren't married to their children's mother -- has never been true across the board, and today in 2010, it's less accurate than ever.

That's why it's of such concern that federal immigration law setting U.S. citizenship rules for children born abroad imposes tougher standards for children born to unmarried citizen fathers versus unmarried citizen mothers. Today, the Supreme Court hears arguments in Flores-Villar v. United States, which challenges that gender distinction in federal immigration law, and as a women's rights organization, the National Women's Law Center has weighed in with the Court on the side of unmarried dads to argue that the law is unconstitutional.

This unfair treatment causes more hardship than ever to fathers, their children, and to entire families. Births to unmarried parents more than doubled -- to 40% of births in the United States -- between 1980 and 2007. Many children born to unmarried parents are raised by both parents together, or by the father alone. And many fathers who don't have primary custody are nevertheless deeply involved in their children's lives.

Ruben Flores-Villar, the petitioner in this case, is a prime example of the close relationship nonmarital children can have with their fathers. He was born in Mexico to teenage parents. His father was a U.S. citizen, and raised his son in the United States. But Flores-Villar couldn't gain U.S. citizenship through his father. The law required that, to confer citizenship on children born abroad, unmarried citizen fathers had to have previously lived in the U.S. for at least ten years, with five of those years being after the age of 14 -- a standard impossible for Flores-Villar's 16-year-old father to meet. But unmarried mothers only had to have lived in the U.S. for one year previously, at any time in their lives.

The National Women's Law Center has filed a friend-of-the-court brief urging that the Supreme Court strike down this law under the Equal Protection Clause. The Constitution requires an exceedingly persuasive rationale for a law to treat people differently based on gender -- and there's simply no rationale that even comes close here.

In defending the sex-based residency requirement, the United States has argued that the law makes it easier for unmarried U.S. citizen mothers to pass citizenship on to their children, because in some countries, nonmarital children will be stateless -- will have no citizenship at all -- if they cannot inherit citizenship from their mother. But it is also true that under some countries' citizenship laws, nonmarital children will be stateless if they cannot inherit their father's citizenship. In fact, in countries including Jordan, Kuwait, Tunisia, and Yemen, once an unmarried father acknowledges or legitimates a child, he will actually render the child stateless if he can't pass on his own citizenship because of the residency requirement. The gender-based rule cannot be substantially related to preventing statelessness, as the Constitution requires, when it actually serves to render the children of some citizen fathers stateless.

Instead of promoting an important governmental interest in fostering parent-child bonds, the residency distinction actually serves as a disincentive for some unmarried fathers to acknowledge their children, because in some countries, this acknowledgment will have the effect of rendering a child stateless. By discouraging paternity establishment, it perpetuates the stereotype that an unmarried father will not acknowledge or support his child, and threatens harm to mothers, fathers, and children. On Wednesday, when the Court hears arguments, the key question will be whether the Court will rigorously apply the Equal Protection Clause, or will its decision give credence and reinforcement to a damaging gender stereotype.

When faced with a related question, the Court got it wrong in 2001 in Nguyen v. INS. In that case, by a 5-4 vote, the Court upheld another citizenship law that treated fathers and mothers differently -- over a strong dissent by Justice Sandra Day O'Connor. That law provided that in order to confer citizenship on a child born abroad, an unmarried citizen father must formally acknowledge paternity before the child turns 18. But there was no comparable requirement for unmarried mothers. The Court reasoned that this distinction didn't violate the Equal Protection Clause because it was based on biological differences between men and women. Women necessarily knew when they had a child, the Court reasoned, and thus had an opportunity to form a relationship with the child. Men didn't, and thus the requirement assured that citizenship would only pass when a father was aware of his child and similarly had an opportunity to form a relationship.

As Justice O'Connor pointed out in dissent, joined by Justices Ginsburg, Breyer, and Souter, the Court approved a gender distinction based on the dubious notion that the government had an interest in assuring that citizenship only passed when a citizen parent and child had an "opportunity" to develop a significant relationship, whether or not they actually did so. Moreover, it approved a gender distinction when a gender-neutral rule, allowing citizenship to pass only when the citizen parent was aware of a child's birth, would have served the asserted interest just as well.

Let's hope the gender distinction in Flores-Villar is struck down. There's no question that Ruben Flores-Villar's father was aware of him and acknowledged him as his son -- in fact, he raised him from birth. The justification for treating unmarried mothers and fathers differently relied on in Nguyen -- to promote an opportunity for a meaningful parent-child relationship -- can't justify the different treatment here. It does a disservice to us all for our country to base such important consequences as the right to reside in the U.S. on unfair sex stereotypes. All families will be stronger if the Court recognizes that simple fact.